CLARK v. FYE, et al

Filing 15

ORDER ADOPTING in part 6 Report and Recommendations and GRANTING 12 Plaintiff's Motion to Amend/Correct. Party GEORGIA CORRECTIONAL HEALTHCARE (in its individual and offical capacities) and GEORGIA DEPARTMENT OF CORRECTIONS (Prison Officials in their individual and official capacities) terminated. Parties TONY HOWERTON, BROWN, HILTON HALL, STEPHEN ROBERTS, RANDY TILLMAN, DERRICK SCHOFIELD and GREGORY MCLAUGHLIN added. The Court ADOPTED 13 Report and Recommendations; DENIED 10 Motion for Permanent Injunction and DENIED 11 Motion for Preliminary Injunction. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 5/29/2018. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ROBERT L. CLARK,
Plaintiff,
v.

CHIQUITA A. FYE, et al.,

Defendants.

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CIVIL ACTION NO. 5:18-CV-71 (MTT)

ORDER
Before the Court are the recommendations of United States Magistrate Judge
Stephen Hyles concerning Plaintiff Robert L. Clark’s 42 U.S.C. § 1983 claims and his
motions for injunctive relief (Docs. 6; 13). The recommendation concerning the
screening of Clark’s complaint (Doc. 6) is ADOPTED in part and REJECTED in part
while the recommendation concerning Clark’s motions for injunctive relief (Doc. 13) is
ADOPTED. Additionally, Clark has moved to amend his complaint (Doc. 12) and that
motion is GRANTED.
I. PRELIMINARY REVIEW
Pursuant to 28 U.S.C. § 1915A(a) and § 1915(e), the Magistrate Judge has
conducted a screening of Clark’s complaint. Clark brings his claims pursuant to 42
U.S.C. § 1983, alleging that the Defendants were deliberately indifferent to his medical
needs thereby violating the Eighth Amendment. Doc. 1. The Magistrate Judge
recommends that Clark’s Eighth Amendment claims against Defendant Chiquita A. Fye
proceed for further factual development. Doc. 6 at 1, 9-10. From Clark’s initial

complaint, it is unclear whether he intends to bring a claim against the Georgia
Department of Corrections (GDOC) and its healthcare division, Georgia Correctional
Healthcare (GCH), or merely unnamed officials within those organizations. Id. To the
extent Clark seeks to assert a claim against unnamed prison officials or “prison guards
generally,” the Magistrate Judge recommends these claims should be dismissed
because (1) from Clark’s initial complaint it cannot be determined who these individuals
are and what actions they have taken towards Clark and (2) fictitious party pleading is
not allowed. Id. at 9-10. Also, to the extent Clark intends to name the GDOC and GCH
as defendants, the Magistrate Judge recommends those claims be dismissed because
state agencies are not “persons” under § 1983 and are immune from suit under the
Eleventh Amendment. Id. at 10.
Clark has objected (Doc. 9) to the Magistrate Judge’s recommendation, and,
accordingly, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(3), the Court
has conducted a de novo review of the portions of the recommendation to which Clark
objects. The Court agrees with the proposed findings, conclusions, and
recommendations regarding Clark’s claims against Defendant Fye, GDOC, and GCH.
Accordingly, those recommendations are ADOPTED and made the order of this Court.
But regarding Clark’s claims against unnamed parties, prison officials or otherwise, that
recommendation is REJECTED as moot because Clark has now moved to amend his
complaint (Doc. 12) to specifically name those individuals. He seeks to add Eighth
Amendment deliberate indifference claims against seven defendants: (1) Warden Tony
Howerton at Smith State Prison, or the “unnamed warden at Smith State Prison”; (2)
Warden Brown at Augusta State Medical Prison; (3) Warden Hilton Hall at Augusta

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State Medical Prison; (4) Warden Stephen Roberts at Washington State Prison; (5)
Warden Randy Tillman at Ware State Prison; (6) Warden Derrick Schofield at Jackson
State Prison; and (7) Gregory McLaughlin at Macon State Prison. Id. at 1.
First, the Court GRANTS this motion to amend. Next, pursuant to § 1915A(a)
and § 1915(e), the Court must conduct a preliminary review of Clark’s complaint. The
Court must dismiss those claims if they: (1) are frivolous or malicious; (2) fail to state a
claim upon which relief may be granted; or (3) seek monetary relief against a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). To find a supervisor liable
under § 1983, a plaintiff must allege the “supervisor personally participate[d] in the
alleged unconstitutional conduct or [that] there is a causal connection between the
actions of a supervising official and the alleged constitutional deprivation.” Cottone v.
Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (citations omitted). “[T]he causal
connection may be established when a supervisor's custom or policy . . . result[s] in
deliberate indifference to constitutional rights or when facts support an inference that
the supervisor directed the subordinates to act unlawfully or knew that the subordinates
would act unlawfully and failed to stop them from doing so.” Id. (quotation marks and
citation omitted). Clark alleges the newly named defendants are wardens at prisons
where he was incarcerated who, according to Clark, were notified of Defendant Fye’s
deliberate indifference through Clark’s grievances but failed to act upon this notice.
Doc. 12 at 1-2. Further, Clark appears to allege that the Defendants had a custom or
policy of ignoring grievances concerning deliberate indifference and not overseeing
negligent subordinates. Id. at 2. The Court finds that Clark’s allegations pass muster

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under § 1915(e)(2)(B), and, accordingly, those claims will proceed for further factual
development.1
In sum, the recommendation is ADOPTED in part and REJECTED in part. To
the extent Clark seeks to name the Georgia Department of Corrections or the Georgia
Correctional Healthcare, those claims are DISMISSED without prejudice. And Clark’s
Eighth Amendment claims against the following defendants are allowed to proceed: (1)
Chiquita Fye; (2) Warden Tony Howerton or the “unnamed warden at Smith State
Prison”; (3) Warden Brown; (4) Warden Hilton Hall; (5) Warden Stephen Roberts; (6)
Warden Randy Tillman; (7) Warden Derrick Schofield; and (8) Gregory McLaughlin.
II. MOTIONS FOR PRELIMINARY AND PERMANENT INJUNCTION
Clark has also filed motions for a preliminary injunction (Doc. 11) and a
permanent injunction (Doc. 10). The Magistrate Judge recommends that these motions
be denied. Clark has objected to the recommendation (Doc. 14), and, pursuant to 28
U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(3), the Court has performed a de novo
review of the portions of the recommendation to which Clark has objected. The Court
agrees with the proposed findings, conclusions, and recommendations of the Magistrate
Judge. The Recommendation is ADOPTED and made the order of this Court. Clark’s
motions for preliminary injunction (Doc. 11) and permanent injunction (Doc. 10) are
DENIED.

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Some of Clark’s claims may be barred by the statute of limitations. But at this stage the Court may only
dismiss on that basis if it “appear[s] beyond a doubt from the complaint itself that [the plaintiff] can prove
no set of facts which would avoid a statute of limitations bar.” Leal v. Georgia Dept. of Corr., 254 F.3d
1276, 1280 (11th Cir. 2001).

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III. CONCLUSION
The Magistrate Judge’s initial screening recommendation (Doc. 6) is ADOPTED
in part and REJECTED in part, and Clark’s motion to amend (Doc. 12) is GRANTED.
Clark’s Eighth Amendment deliberate indifference claims against the following
defendants shall proceed: (1) Chiquita A. Fye; (2) Warden Tony Howerton or the
“unnamed warden at Smith State Prison”; (3) Warden Brown; (4) Warden Hilton Hall; (5)
Warden Stephen Roberts; (6) Warden Randy Tillman; (7) Warden Derrick Schofield;
and (8) Gregory McLaughlin. His claims against the Georgia Department of Corrections
and Georgia Correctional Healthcare, and any remaining claims he may attempt to
bring, are DISMISSED without prejudice.2 Finally, the Magistrate Judge’s
recommendation (Doc. 13) concerning Clark’s motions for preliminary and permanent
injunctions is ADOPTED, and, accordingly, those motions (Docs. 10; 11) are DENIED.

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Clark alleges that he was denied medical treatment for the past 14 years. Therefore, many of the
dismissed claims are likely barred by the applicable two-year statute of limitations. Therefore, the
dismissal is, in effect, likely with prejudice. Justice v. United States, 6 F.3d 1474, 1482 n.15 (11th Cir.
1993); Burden v. Yates, 644 F.2d 503, 505 (5th Cir. 1981). Some circuits have held that equitable tolling
applies while a prisoner exhausts his administrative remedies, but the Eleventh Circuit has not made such
a holding. See Napier v. Preslicka, 314 F.3d 528, 534 n.3 (11th Cir. 2002) (citing Clifford v. Gibbs, 298
F.3d 328, 332-33 (5th Cir. 2002)); Leal v. Ga. Dep't of Corr., 254 F.3d 1276, 1280 (11th Cir. 2001).
Regardless, even if Clark is barred from refiling his claims against GDOC and GCH, dismissal is
appropriate. Like the Magistrate Judge stated, the GDOC and GCH, as state agencies, are not persons
under § 1983 and are immune from suit under the Eleventh Amendment. Gardner v. Riska, 444 F. App’x
353, 355 (11th Cir. 2011) (holding that state agencies are not “person[s] within the meaning of § 1983”
(quoting Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1524 (11th Cir.1995))); Stevens v. Gay, 864 F.2d
113, 115 (11th Cir. 1989) (“The Eleventh Amendment bars this action against the Georgia Department of
Correction and Board of Corrections . . . regardless of whether the plaintiff seeks money damages or
prospective injunctive relief.”). Therefore, amendment would be futile.

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IV. ORDER FOR SERVICE
It is ORDERED that service be made on Warden Tony Howerton, or the
“unnamed warden at Smith State Prison”; Warden Brown; Warden Hilton Hall; Warden
Stephen Roberts; Warden Randy Tillman; Warden Derrick Schofield; and Gregory
McLaughlin and that they file an Answer, or such other response as may be appropriate
under Rule 12, 28 U.S.C. § 1915, and the Prison Litigation Reform Act. The
Defendants are reminded of the duty to avoid unnecessary service expenses, and of the
possible imposition of expenses for failure to waive service pursuant to Rule 4(d).
SO ORDERED, this 29th day of May, 2018.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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